Partridge Snow & Hahn Partner and Employment & Labor Chair Alicia J. Samolis was recently featured in Law360 discussing Massachusetts’ newly implemented pay transparency law. The law requires companies with 25 or more Massachusetts employees to disclose pay ranges on job postings and provide salary information to employees upon request.
While the law is receiving significant attention, Ms. Samolis noted that it is unlikely to be a top priority in employers’ compliance efforts – and for good reason. In her interview, she highlighted the lack of monetary penalties until an employer is caught violating the law, as well as the absence of a private cause of action. Given those factors, she predicted “a massive amount of noncompliance” with the new requirements.
Other attorneys interviewed suggested the law may lead to an increase in Equal Pay Act claims due to the additional information employers must provide. However, Ms. Samolis expressed skepticism that a meaningful uptick in such claims will occur. The law’s flexible definition of “pay range,” she explained, may limit the usefulness of the disclosed information. She also noted that even when pay transparency data could support a claim, Equal Pay Act lawsuits “are expensive to litigate, and you never know what you’re going to get,” making them less attractive to plaintiffs’ counsel. She further observed that “[e]ven if you have a pay range that an employer puts out there, and if you have two clients telling you, ‘We are women and we are at the lower end,’ you don’t know what the rest of the payroll will look like [if you were a plaintiff’s attorneys].”
Additionally, Equal Pay Act claims are the most lucrative for plaintiffs’ attorneys on a class basis. More employers in Massachusetts are also effectively relying on individual mandatory binding arbitration agreements – something Ms. Samolis, as an employer-side attorney, regularly advises her clients to adopt.
Still, Ms. Samolis recommends that covered employers, including out-of-state employers, think strategically about how they will respond to pay range requests and approach future job advertisements. Providing off-the-cuff ranges increase the likelihood that an employee may feel discriminated against and may also create unrest among the broader workforce or introduce recruiting challenges. Employers are encouraged to consult experienced employment counsel to develop a thoughtful compliance strategy.
